Citation: TT 2013 HC 206
Title: FULLER v. O’BRIEN
Country: Trinidad and Tobago
Court: High Court
Suit No.: FH 1677 of 2011; FH 2354 of 2011
Judge(s): Ramkerrysingh, J.
Date: July 8, 2013
Subject: Family Law
Subsubject: Children – Custody – Removal of child from jurisdiction – Welfare of child – Best interests of child – Respondent retained care and custody of child – Respondent permitted to remove the child from jurisdiction – Applicant allowed to have access to the child – Family law (Guardianship of Minors, Domicile and Maintenance Act, Section 3 and 4.
Ms. Cherisse Huggins for the applicant
Mr. Kirk Hogan Instructed by Mrs. Kathy Ann Hogan for the respondent
- This case started as a Child Application filed by the Father on August 4th 2011 in proceedings FH01677 of 2011 for orders that: (i) the child of the parties be made a Ward of Court; (ii) the Mother be prevented from removing the said child from the jurisdiction of the Court; (iii) he be declared to be the father of the said child; (iv) he be granted joint custody with the Mother and (v) that he be granted access. A Notice of Discontinuance was filed the next day, and there was a change of Attorneys appointed in September. His new Attorneys filed fresh proceedings on November 10th 2011 in action number FH02345 of 2011. In the meantime, Attorneys for the Mother also filed an application in the old proceedings and thereafter subsequent papers were filed and cross-filed in both proceedings, causing quite a flurry requiring some housekeeping. Both files were consolidated and directions given for filing of outstanding affidavits.
- By his new Application the Father repeats his call to prevent the child’s removal from the jurisdiction, but has had a change of heart on the custody issue and now seeks custody for himself with access to the Mother. Further, he wants: (i) his name inserted on the child’s birth certificate, (ii) a change of the child’s surname and (iii) orders for educational and medical costs. The Mother is also seeking an order for custody, as well as maintenance but during the course of the proceedings added her desire to remove the child from the jurisdiction. She had married a Belgian national and although the couple had initially agreed to remain in this country, when her husband was unable to find work they decided that it would be better to relocate to Belgium.
- As with most custody matters bitterness and distrust fuels the contention. This is particularly ferocious when a third party or step-parent enters the picture, and in a case like the one before me, where that step-parent is a foreigner, fears of kidnapping and child abduction are heightened. This is the case of the Fattier, who has said in his evidence and again at trial that his main concern is that he will never see J again if the Mother is allowed to take her away. He desperately wants to maintain contact with his daughter and play an integral role in her life. He is also uncertain and perhaps suspicious of the Mother’s husband, KM, whose presence in the Mother’s life is bound to be a source of friction between the parties. Perhaps the Father felt his fears justified because the difficulties he encountered in the past when trying to have access, coincided with the Mother’s marriage to KM and his discovery of what he may have felt, was a clandestine attempt to trick him into consenting to apply for travel documents for the child.
- The minor who is the centre of this custody battle is five year old J, who lives with the Mother and members of her extended family in Chaguanas. During the course of these proceedings the Mother gave birth to a son of whom KM is the father. She has remained in Trinidad throughout the proceedings despite KM’s unavoidable return to Belgium presumably when his visitor’s visa expired, but in any case he had to return to work.
- Apart from his fear of being denied access if allowed to leave the country, the Father raised concerns about (1) KM’s ability to maintain the Mother, their newborn and J adequately; (2) his living accommodation and amenities and (3) the prospects of education for J in Belgium. In preparation for trial a Probation Officer’s Report was ordered and the Assessment Officer Ms. Gopaul (to whom I am very grateful for her attempts to procure a report from the Belgian authorities, which proved problematic, because of the absence of an embassy or consulate here), was directed to contact and communicate with the Chargé d’Affaires of the Embassy in Brussels, for assistance in preparation of a report into the home visit and other relevant information of KM. After some delay a report was forwarded from the Chargé d’Affaires to Ms. Gopaul, who also prepared a comprehensive report of her investigations and interviews in Trinidad. Both reports were submitted to the court and the parties were referred for co-parenting counselling to help them with the challenging circumstances.
- Having read and heard the evidence and the reports of the Probation Officer Ms. Gopaul, the Social Worker and the Belgian authorities, I am satisfied that should J be taken out of the jurisdiction she will be well cared for by the Mother and KM. On becoming a citizen J will also be able to access health care and other services in Belgium which are likely to be superior to what her parents can afford here. There is of course no guarantee that if the Mother is allowed to take her to Belgium that she will be returned for holidays and other periods of access, but arrangements can be placed to encourage compliance. Furthermore, Trinidad and Tobago has ratified the Child Abduction treaty with Belgium and although we have not yet completed the process to facilitate reciprocity and the return of the child to its original jurisdiction, I do not foresee a Belgian court being unwilling to return the child if necessary, unless good cause be shown.
APPLICATION OF LAW
- The relevant legislation is the Family Law (Guardianship of Minors, Domicile and Maintenance) Act 1981, which by sections 3 and 4 recognize the welfare principle of paramountcy and the equality of parental rights. From the evidence filed by both parties and KM, there is nothing that I can glean that persuades me that custody should be taken away from the Mother. The Father has not said that the Mother is unfit. It is not his case that she will be unable to care for J now that she has another child. He has not said that KM will mistreat J, or has indicated an unwillingness to provide for her and help care for her. The Father’s main if not only concern is that he may never see J again and even in that case he has not shown that there is a real possibility or likelihood that the Mother will prevent access. He is expressing a fear that may not materialize, and has not satisfied me that this fear is likely to turn into a reality.
- In P (L M) (otherwise E) v. P (GE) (1970] 3 All ER 659 a case very much like the present one the Court of Appeal held that “leave to take the son to New Zealand would be granted for that course was in the best interests of the son’s welfare which was the primary consideration, there being no fear that arrangements for his protection, support and upbringing were inadequate …” Similarly the focus must be on what is in i’s best interest, in the absence of any evidence of risk of exposure to a dangerous or harmful situation.
- Before proceeding further I want to point out that the relief for joint custody claimed by the Father is not available under the FLA, but something akin to it is provided by section 18. Since it is inevitable that the parties will be residing in different jurisdictions, the geographical distance can present a challenge but successful execution of this section need not be problematic if the parties cooperate with each other. It must also be borne in mind that section 3 of the FLA treats parents equally in that the claims of the mother are not considered more superior than the claims of the father and vice versa. There is no settled rule that a child of tender years should remain with its mother [See also Re B (an Infant); [19621 1 All ER 872].
- The paramountcy principle of the welfare of the child is well established and each case must be taken on its own facts in determining the best interest of the child. Prior to the Family Proceedings Rules (FPR) the court turned to several useful guiding factors for assistance in deciding what was in the best interest of the child. These factors have now been helpfully enshrined in Rule 1.1(3) of the FPR and will be used as the basis for my analysis.
- The Ascertainable Wishes and feelings of the child-: J is only five, but appears from the Assessment Officer’s report to be a bright girl who is not shy about expressing her views. Ms. Gopaul reported that while the child is close to the Mother, she sees the Father regularly and spends time with her paternal grandmother when she visits him. She concluded that J did not appear to prefer one parent over the other and declared that she was excited to welcome her unborn sibling. At the time of the interview the Mother was pregnant with KM’s child.
- Physical Emotional and Educational Needs-: There does not appear to be any doubt that the child’s physical and emotional wellbeing are adequately met. She is comfortably accommodated at both homes of her parents, although the sleeping arrangements at the Mother’s house may be a bit cramped; the Belgian authorities describe a very comfortable, two bedroom apartment in which KM lives where.) would share a room with her brother. He intends to move to larger accommodation when his current lease ends. From the photographs provided, the apartment and surroundings appear safe and secure. There is no complaint about the Father’s premises, which comprise a two bedroom flat, in. which J has her own room. The home is suitably furnished and equipped.
- J is lucky to be cared for by her parents and their extended families, and is described by Ms. Gopaul as “a spunky outspoken individual”. She is currently a pupil of St Jude’s Preparatory, but further details on her progress there were not provided as the officer was unable to conduct the necessary interviews in time for the trial. KM had selected a kindergarten at which J will be enrolled if she were allowed to live in Belgium. Some details of the school and its policies were provided but no independent assessment of the school was made.
- Cultural and Ethnic Background-: Undoubtedly J will be exposed to a thoroughly new culture and language if she is taken to Belgium. This should not pose a problem given the resilience of young children and the ease with which they adapt to new surroundings and situations. It is a well-known fact that children learn new languages far quicker than adults. I have no doubt that J will adapt to these changes without ceremony.
- The Likely Effect of any Change of Circumstances-: Given Ms. Gopaul’s description of J, she should not suffer any adverse effects of any change in circumstances. If anything she is more likely to relish it with the natural wonder and curiosity of a child. Any adverse effects however will be bearable with the Mother at her side. Until J learns to speak the language and acclimatize to the new surroundings, the Mother will be there to reassure her, accompany her to school and act as a buffer to any adjustments that may have to be made. Should the Father be granted custody it would mean a bigger adjustment by J who has been used to having the Mother always around. She would eventually settle down, but not without the emotional discomfort of the maternal yearning, from which she may take some considerable time to recover. If we are to consider her best interests then serious consideration ought to be given to the effect on her of a long-term separation from the. Mother, versus adjusting to a new country with the Mother at her side. Consideration must also be given to the effect of separating 1 from her new brother, with whom, by now, she is sure to have formed a bond.
- Although J’s welfare is at the heart of the matter, one must juxtapose the effects of the Mother and her ability to provide emotional stability for J, if an order were made preventing her from taking the child. She is committed to joining KM in Belgium, but judging from her attitude during the proceedings she may sacrifice her ambitions and remain here with J and her son, if an order against removal is made. This is sure to put a strain on her marriage and her own wellbeing, which in turn will negatively impact on J.
- Age Sex and Background-: As mentioned earlier [Paragraph 11], age and sex are not statutory determiners of preferred custody between parents, but it does not exclude the court from taking these factors into account in the context of the circumstances before it. There is no evidence that calls for special attention to be paid to either J’s age or sex. She is a precocious five year old, not particularly dependent on either parent for her basic day-to-day care. At this age she can feed herself and possibly take a bath and with a little help, dress and perhaps brush or comb her hair. Either parent is capable of assisting with her daily routine.
- The 1950s and 1960s view that a girl child, or a child of tender years ought to be with its Mother has long been reviewed, but we recognize that very young children tend to have a closer attachment to their mothers and in the spirit of the welfare principle, one would not erect a wall between that bond just for the sake of doing so. There must be some reason to cause disruption to what is a preordained natural societal occurrence [See Thomas v. Thomas FH01367/2009 per Mohammed J; Abraham v. Abraham HCA No. 242/ 1999 per Ventour J; Re B (an Infant)  1 All ER 872 Lord Evershed MR ]. J has been in the care of the Mother since birth and while it is accepted that she enjoys spending time with the Father, it is the Mother with whom she has spent the majority of her time. To suddenly interrupt that in the absence of a threatening situation seems an unnecessary emotional upheaval.
- The child in the case of D .v M (minor: custody appeal)  3 All ER 897, was younger than J, but the words of Ormrod L.J. are relevant. He said at page 903 of the report:
“… continuity of care is a most important pan of a child’s sense of security and that disruption of established bonds is to be avoided whenever it is possible to do so.”
Sachs LJ in Poel v. Poel  1 WLR 1469 at 1473 also emphasized the importance of continuity in a child’s life and opined that the court should not lightly interfere with the way of life selected by the parent having custody. [Poel v Poel  1 WLR 1469 @ 1473; per Sachs LJ: “Any such interference may, … produce considerable strains which would not only be unfair to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child.”] Lord Justice Sachs sympathized that:
“The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results.”
- Any Harm Suffered or Risk of Potential Harm-: There is nothing in the evidence that even remotely suggests that J is at risk of imminent or potential harm in either household, or in the care of either parent and other members of their respective families. In fact all the evidence points to a well-loved child by both sides.
- How capable each of her Parents, and Any Other Person in relation to whom the Court considers the question to be relevant of Meeting her Needs-: Each parent seems equally capable of providing for J’s physical as well as emotional needs. The Mother is currently unemployed, but holds a certificate from the Hospitality School in Chaguaramas. Hopefully she is able to make use of this qualification to secure employment in the future. For the time being she is financially dependent on KM, who has expressed his willingness to maintain her and J. KM’s net salary as a welder in Belgium is a little over €1900 per month which he admitted at trial will just about cover his domestic expenditure if the Mother, J and his son were to join him in Belgium. He did indicate however that their arrival will entitle him to monthly food cheques of €200 to supplement his food bill. That was not verified, but he has no reason to fabricate such information. Once the Mother’s and children’s resident statuses in Belgium are regularized KM said that he would be entitled to a tax reduction and a birth premium from his company. Further, on becoming residents, (which he indicated should take about two years) the Mother and the children will be entitled to government benefits and he would be applicable for government child support and housing.
- The Father works for $4000 per month and earns an additional $1200 to $1600 as a photographer’s assistant. A rough calculation of his monthly expenditure for himself and 1 (exclusive of rent which is paid by his employers) against what he earns leaves him in deficit of a little over $200. He pays $1200 per month maintenance for J by interim court order of 23rd July 2012. There is no complaint of non-compliance since the order has been made and so far he has managed to make ends meet.
- Stability of Home Life-: There is no question that both sides can provide domestic stability for J. On the Mother’s side she has the support of family members and if she migrates to Belgium she has the support of KM with whom 1 interacts nicely and refers to as “Uncle Koen”. On the Father’s side J’s grandmother plays a significant role, caring for her when he has access.
- I take judicial note that KM has expressed a willingness to ensure that the Father continues to play an interactive role in J’s life if she were taken to Belgium. The Father on the other hand is reported to have told J that “Uncle Koen is not his friend and he doesn’t like Uncle Koen” [Probation Officer’s Report]. As the proceedings drew to a close I observed there has been a softening in the attitude of the Father towards KM and •he stated that he may not be as averse to the idea offs moving away as he originally was.
- Personality and Character of the Parents-: Both parties want the best for J and have her best interest at heart. Of that there is no doubt. But it seems that their distrust for each other (and here I note more on the part of the Father than the Mother) has served as a barrier to cooperation between them to promote what is best for J. Individually, I can find nothing wrong with the parenting and nurturing styles of either party, but one of them would have to compromise his or her position, in reaching a resolution to this matter.
- The Father’s fears stem from his difficulties in accessing J in the years following his breakup with the Mother and what he thought were her deliberate attempts to exclude him from J’s life. As the matter proceeded he continued to raise other concerns of a lesser significance none of which were compelling enough to persuade me that custody should be taken away from the Mother. The Mother’s motives in going to Belgium are innocent and arise purely out of necessity. She and KM explored the possibility of him obtaining employment here but did not succeed. He has stable and steady employment at home in Belgium where he, the Mother, their baby and J would be able to access government facilities unavailable to them in Trinidad. KM would be able to care for the family in Belgium in a way he will not be able to if he stayed here. It seems the only logical solution for the family to relocate to Belgium.
- The fact that the Mother wishes to move to Belgium should not be viewed as an albatross, to either force her to remain here and sacrifice her marriage, or encourage KM to surrender his financial security to eke out a sub-standard living here. These are the options for the Mother if she is not allowed to migrate to Belgium with J, which are sure to cause bitterness and frustration all around and creating an unhappy existence for the child. It is almost as if the Mother would be punished for falling in love with a foreigner. It does not mean to say that one should ignore the hurt and disappointment of the parent who is left behind, but the pain of that parent must be weighed against the best interest of the child.
- A similar situation was considered by Griffiths U in Chamberlain v. de la Mare (1982) 4 FLR 434 where the mother who had custody and had remarried wished to emigrate with her new husband to the United States. Griffiths U said at page 445:
“If a stepfather for the purpose of his career, is required to live elsewhere the natural thing would be that he will wish to take his family, which now includes his stepchildren with him, and if the court refuses to allow him to take the stepchildren with him he is faced with the alternative of going and leaving the family behind which is a very disruptive state of affairs … or alternatively he may have to throw up his career prospects and remain in this country. If he had to do that he would be less than human if he did not feel a sense of frustration and do what he may, that may well spill over into a sense of resentment against the stepchildren who have so interfered with his future career prospects. If that happens it must reflect upon the happiness and possibility even the stability of this second marriage.”
- Towards the end of the trial I asked the Father whether he would pursue his claim for custody if his major concerns were adequately addressed, he shyly indicated that he would not. I took his answer as an indication that he is willing to adopt a more cooperative approach and I find his change in attitude refreshing and commendable. I think that the time has now come for healing to take place, which will be helped a great deal if the Father is granted the relief that his daughter bear his name. This will also remind J of her father as well. Hopefully this may also placate any feeling of abandonment the Father may have. I appreciate that this must be emotionally difficult for him, but perhaps in this small way he will feel a sense of connection. Accordingly, shall carry his name and her birth certificate shall reflect that.
UNDERTAKINGS AND ORDERS
- Having considered all the evidence and the law it is my judgment that 1 remain in the custody of the Mother, and that she be allowed to remove her from the jurisdiction of this court to reside with her in Belgium. The Father will have access to her in Trinidad or Belgium if he prefers, at all stated times. He shall also have contact with the child while she is in Belgium.
UPON THE MOTHER UNDERTAKING
- That she will promptly and on the due dates return the child of the family Joanne to the jurisdiction of the Court in time for the start of each holiday access in Trinidad as provided for in this order and in any event if and when called upon to-do so by the Court;
- That prior to the initial removal of Joanne from the jurisdiction she will, having received such cooperation from the Father as may be necessary, procure the making by consent of a mirror Order in the appropriate Court in Belgium, which Order shall contain all the relevant provisions both of this Order and of the custody order made in this suit, the reasonable costs of both parties incurred in procuring such corresponding Order to be paid by the Mother;
- That prior to the initial removal the Mother will enter into a Bond with the Registrar of the Family Court, such Bond to be in the terms of the Deed annexed hereto
IT IS ORDERED that:
- Custody care and control of the child Joanne O’Brien is granted to the Mother.
- Johnathan Fuller is hereby declared the Father of the said child and he shall retain all the parental rights and duties other than actual custody and will be entitled to contact and communicate with the child’s teachers, caregivers, doctors and other medical professionals.
iii. The Mother shall consult the Father in any significant decisions to be made in relation to the child save and except in the case of emergency and she shall keep him updated of all the child’s developmental and other important milestones.
- The surname of the said child shall be changed from “O’Brien” to “O’Brien-Fuller” and the said Joanne O’Brien shall now be known as “Joanne O’Brien-Fuller”.
- The Registrar of the Family Court is directed to serve a copy of this order on the Registrar General of Trinidad and Tobago who in turn is directed to enter the Father’s name and any other particulars in the Register of Births.
- That subject to compliance by the Mother with her above-recited undertakings she do have permission to permanently remove the child from the jurisdiction of the court.
vii. That in the event of the Mother retaining the child outside the jurisdiction of the Court in contravention of this Order the Father shall be at liberty to apply to the Court for Directions as to the Assignment of the said Bond entered into by the respondent and Koen Mayers with the Registrar of the Family Court to the Father.
viii. That the Father shall have staying access during the school holidays for five weeks during the summer holidays and one week in each of the other two holidays, Christmas Day alternating each year.
- For the avoidance of doubt the Father’s precise access schedule is as follows:
- Five weeks staying access during the school summer holidays and one week staying access during each of the Christmas and Easter holidays, the precise dates to be as agreed between the parties, subject to Christmas alternating between them.
- Such other access as may be agreed between the parties.
- The jurisdictional venue for each period of access shall be determined by the Father.
- In the event that the Father chooses to exercise his access in this jurisdiction both parties shall be responsible for making the flight arrangements and they shall both be responsible for the cost of the child’s airfare and other travel arrangements in the proportion of 60% for the Mother and 40% for the Father.
xii. Each party shall have communication access to the child at all reasonable times when she is in the care of the other via telephone, Skype, email, mobile or other Internet access.
xiii. The child do cease to be a Ward of Court
xiv. The Father do pay maintenance in the amount of $1200 per month for the maintenance and general upkeep of the child until she attains the age of 18 completes full time education or training for a vocation or profession or until further order.
- The Mother is permitted to request financial assistance from the Father in relation to educational expenses for the child if necessary.
xvi. There shall be liberty to apply.
xvii. Each party to bear his own costs.
THE BOND ABOVE REFERRED TO:
I/We SHELLY ANN O’BRIEN of _____________ [and KOEN MEYERS of____________________ are jointly and severally bound to the Registrar of the Family Court in the sum of $______________ for the payment of which I/we bind myself/ourselves and each of us. The condition of this OBLIGATION is that if SHELLY ANN O’BRIEN in the Consolidated proceedings in the Family Court numbered FH01677 of 2011 and FH02354 of 2011 respectively complies with the Order in the said proceedings dated 8th July 2013 and returns the child Joanne to the jurisdiction as required by the said Order, then this OBLIGATION shall be void and of no effect, but shall otherwise remain in full force and effect.